Form 1 NATIONAL RArLRGAD ADJUSTMENT BOARD Award No. 6516
 SECOND DIVISION Docket No. 6371
 2-N& -CP1-' 73
 The Secona Division consisted of the regular members and in
 addition Referee Robert. A. Tranden when award was rendered.
 ( System r ederation Tao. 16, Railway ~-;nployes'
 ( D-:partment, A. f. of L. - C. I. 0.
 Parties to Dispute: ( (Carmen)


Dispute: Claim of !rnployes:


' That Helper Carman Ernest Yopp be compensated an additional eight




Findings:

 The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

 The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Form 1 Award No. 6526
 Page 2 Docket No. 6371
 2-NW-CK-' 73
Claimants allege that the Carrier violated Rule 10 of the Agreement when they were held off of their regular assignments to fill vacation vacancies commencing on later shifts. It is the contention of the organization that under Rule 10 the Claimants had the right to work the last shift of their regular assignment prior to filling a vacation vacancy. Rule ten reads in part as follows:



              (a) When it becomes necessary for employee to work overtime they shall not be laid off during regular working hours to equalize the time."


We have been directed to Award 2616 of this Division with Referee J. Glenn Donaldson sitting as the neutral member. In that case dealing with the same Rule and the conflict between the vacation agreement and the basic agreement between the parties we ruled as follows: (emphasis supplied)
            "Claimant, a carman helper, was regularly assigned to the day shift 7:00 AM-12 Noon, and 1:00 PM-4:00 PM, Mondays through Fridays on the repair track. He worked his regular assignment Monday and Tuesday. The foreman ordered him not to work his regular day shift, Wednesday, but to report for duty that night on the 11:00 PM train yard shift in the place of Carman Helper Ray to protect vacation period of latter employe.


' The claimant alleges a violation of Rule 2(k) of the September 1,
            1949, agreement, reading:

            'When it becomes necessary for employes to work overtime they

            shall not be laid off during regular working hours to equalize

            the time.'


          A similar claim was before this Division under an identical rule and sustained in Award 994. Similarly in Award 1266. In neither of these cases, nor in Award 7.259, was the assignment made to protect a vacation leave and the Vacation Agreement, of course, did not come into issue.,


          One of the first disputes in which conflict between the Vacation Agreement and existing working rules occurred was in Docket 1434, subject of Award 1514, wherein this Division, sitting with Referee Parker, upheld the sanctity of the existing rules as against the Vacation Agreement, stating in part:


                Ti.'here, as here, there is a conflict between the vacation agreement and existing working rules the terms and conditions of the Rules Agreement control until such time as they are modified or changed through the medium of negotiation.'

i- or M, 1 Award No . 6516 I
 lcige 3 Docket No. 6371
 2-NU'-ClR_' 73
 1Ihis basic ruling was elaborated upon and documented by
 Referee Carter in Awards 106 and 1807. In both of these
 disputes the assigmment was to protect a vacation leave and
 the existing rule under which the premium rate was claimed
 was the Change in Shift rule. It is this same rule which has
 been pressed by the Organization in all succeeding submissions
 until the one at hand.
 Referee Carter in Awards 1806 and 1807 did not give the scope
 of finality to Referee Morse's interpretation of Article 12,
 Vacation Agreement, posing the Change in Shift rule, as did
 one succeeding referee. Referee Carter said;
 '* * * The issue decided by the referee was not the one
 presented to him for decision. It is not, therefore,
 a cnntrolling interpretation, as the carrier contends,
 in a case where a conflict exists between the Vacation
 Agreement and Schedule Agreement rules.'
 In Award 21;83, however, the Division sitting with Referee Douglass
 adopted the Morse interpretation as final and binding upon the
 parties in respect to Change in Shift rule, thus, overruling
 Awards 18C.") and 1SU7 upon the specific issue there before the
 Division.
 In Award 2197 (venke) we subordinated the Change in Shift rule to
 Referee Morse's interpretation of Section 12(a) o: the National
 Vacation Agreement, but did so not through construction but through
 estoppel. We there recognized that Morse by warning against an act
 and then himself doing it had created an uncertain and ambiguous
 situation. We then found that the carrier had put into practice
 the specific holding of the referee and further found that the
 Organization had for eleven years, without objection, accepted
 the interpretation and its application. We therefore concluded
 that the Organization was estopped from claiming that the referee
 had no authority to make the interpretation in the first instance.
 We buttressed out findings further by quoting recitals of affirmation
 applying in the August 1954 National Vacation Agreement. This line
 of reasoning has supported denial of claims in the following subsequent
 awards of this Division-Awards 2205 Wenke 2230 Wenke , 22 3 WenlceT,
 and 22 0 4lhiting . These later pronouncements may reflect a rejection
 by the Division of the earlier awards of the Division sitting with
 Par'cer and Carter in those cases where the Changing Shift or Doubling
 Over rules are relied upon but only in such type of cases. There is
 no place for the doctrine of estoppel, however, in the case before us.
 Referee Morse gave no interpretation of the lay-off rule upon which
 estoppel could be based. Therefore, the awards of the Division sub
 sequent to Award 20 3 have no application to a case of the type pre-
 sented here.
 Form 1 Award No. 6516
 Fag°- 4 Docket No. 6371
 2-N&W-CM-' 73
 In the instant case, we find that Rule 2(k) was offended by the
 forced lay-off of claimant by the carrier preparatory to his
 entering upon a relief assignment. This finding rests upon our
 past rulings in Awards 994 and 1266. We do not find that such
 awards have been nullified by the Vacation Agreement or by any
 interpretations or rulings since made thereunder. In his inter
 pretation of Article 10, Referee Morse stated:
 'The parties have provided in Article 13 for the procedure
 which is to be adopted in making any changes in the working
 rules. Hence unless the referee can find that the Vacation
 Agreement itself constitutes a modification of some given
 wor'_~ing rule, the parties must be deemed to be bound by
 ~;;ist~rg wcrXing rul^s until they negotiate changes in
 ';aem by use of th- collective bargaining rr·-)ccdures spt
 nut in Article 13.'

          11 c='i-r, brushes Awards 13.36 and 18C7 aside by stating that under th(, Ague^mc:-.t it t?~;us t ?_]_, 1'7'54, Referee Norse's inters rotat i-ins of the Vacation Agreement were negnti7trft .'*nto the ::cr'-;.ng agreF::.-nt. ;:hat interprPtat i on can the carrier have reference to ti--at tends to yet as ic7., the rule in question here'? We find nothing except a recognition that i«ch conflicting rules undoubtedly exist, and where evisting negotiation by the parties to rem,ve such conflicts are in <lrder.


          Let us be clear on the score of th--se fin,-,in--s and award. v;e are nca passing upon a claim for premium pay involved in doublinE over. 1'l.at situation has not occurred in this case. :;Thether it will be asserted b;;; the L:nployes, where occurring, in face of the Vacation. Agreement and cited awards is, of course, not knovm at this time. We cannot antici-)ate and presume such a claim in deciding the limited issue before us. What we are protecting by this award is merely clai.mant_'s right to work the last shift of his regular assignment at his pro rata rate where no time conflict atith temporary vacation assignment is involved.

          AI ARD Clam sustained."


In accordance with the findings of this Board as set nut in the above quoted Award we will sustain the claim without interest.

                            A W1 A R D


        Claim sustained.

        NATIONAL RAILROAD ADJUSTMENT BCARD

        By Order of Second Division


          Attest:


_Executive Secretary

 r - -

          Dated at Chicago, Illinois, this 18th day of June, 1973.